1The 1996 Amendments to the INA were enacted by the Antiterrorism and Effective DeathPenalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1241 et seq. (1006) and the Illegal ImmigrationReform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 et seq.(1996).

28 U.S.C. § 1182(c) (1994) states in relevant part: “Aliens admitted for permanent residencewho temporarily proceeded abroad voluntarily and not under an order of deportation, and who arereturning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in thediscretion of the Attorney General. . . .” This provision, while literally only applicable to exclusionproceedings, has been interpreted by the Board of Immigration Appeals to authorize any permanentresident alien with a “lawful unrelinquished domicile of seven consecutive years” to apply for adiscretionary waiver of deportation. Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976); see also, INS v.St. Cyr, 533 U.S. 289, 295 (2001). “If relief is granted, the deportation proceeding is terminated and thealien remains a permanent resident.” 533 U.S. at 295.

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MURALI KRISHNA :PONNAPULA : CIVIL NO.1:CV-02-1214

:Petitioner :

:v. :

:JOHN ASHCROFT, et al., :

:Respondents :

MEMORANDUM

Before the court is Petitioner, Murali Ponnapula’s, petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 et seq. Petitioner challenges the

lawfulness of his final order of removal from the United States. Specifically,

Petitioner (1) challenges the Immigration Court and Board of Immigration Appeals’s

retroactive application of the 1996 amendments to the Immigration and Nationality

Act1 (“INA”), (2) seeks a ruling declaring him eligible to seek relief from removal

under former § 212(c) of the INA, see 8 U.S.C. § 1182(c) (1994)2 (hereinafter,

“former § 212(c)”), (3) seeks a ruling declaring him eligible for relief under § 212(h)

38 U.S.C. § 1182(h) provides in relevant part:

The Attorney General may, in his discretion, waive the [inadmissibility and or thedeportability of an alien] if – (1)(A)

. . .

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; and(2) the Attorney General, in his discretion, and pursuant to such terms, conditionsand procedures as he may by regulations prescribe, has consented to the alien’sapplying or reapplying for a visa for admission to the United States or adjustmentof status.

8 U.S.C. § 1182(h)(1)(B) and (2).

2

of the INA, see 8 U.S.C. § 1182(h)3 (hereinafter “§ 212(h)”), and (4) seeks a ruling

ordering the Immigration and Naturalization Service (“INS”) to conduct an

individualized bond hearing. The parties have fully briefed the issue and presented

oral argument. The matter is now ripe for disposition.

I. Background

A. Factual and Procedural Background

Petitioner is a native and citizen of Pakistan who was admitted to the

United States as a nonimmigrant on September 4, 1983, and was granted lawful

permanent resident status (“LPR status”) on January 26, 1986. (In re Ponnapula,

May 22, 2001 BIA decision at 1 [hereinafter “BIA decision”].) In 1993, a New

York State grand jury, sitting in Manhattan, indicted Petitioner, along with several

other defendants, for grand larceny in the first degree, see N.Y. Penal Law

4N.Y. Penal Law § 155.42 states: “A person is guilty of grand larceny in the first degreewhen he steals property and when the value of the property exceeds one million dollars. Grand larcenyin the first degree is a class B felony.”

5N.Y. Penal Law § 175.10 states: “A person is guilty of falsifying business records in thefirst degree when he commits the crime of falsifying business records in the second degree, and when hisintent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof. Falsifying business records in the first degree is a class E felony.”

6Petitioner’s date of conviction is somewhat murky. On December 20, 1994, he was foundguilty by a New York State jury for one count of grand larceny. On March 18, 1997, after a motion byPetitioner/Defendant, the State trial judge vacated the guilty verdict as contrary to the weight of the

(continued...)

3

§ 155.42,4 and for falsifying business records in the first degree, see id. § 175.10.5

(Decl. of Alexander E. Eisemann in Supp. of Mot. for Temp. Restraining Order and

Order to Show Cause at 2, ¶ 3 [hereinafter “Eisemann Declaration”].) Over the next

year, Petitioner and the Manhattan District Attorney’s Office engaged in plea

negotiations. (Id.)

At one point during his trial, the District Attorney’s office offered to

allow petitioner to plead guilty to a misdemeanor with a probationary sentence. (Id.

at ¶ 4.) Petitioner considered the offer and immigration consequences of pleading

guilty versus going to trial. Petitioner’s counsel advised him that, if convicted after

trial, he would likely receive a sentence of less than five years imprisonment. (Id.)

Petitioner realized that even if he were convicted of a felony after trial, he would

still likely be eligible for hardship relief from deportation pursuant to 8 U.S.C.

§ 1182(c) (1994). (Id.) Based on this information, Petitioner decided to turn down

the plea offer and instead go to trial. On December 20, 1994, Petitioner was

convicted in the Supreme Court of the State of New York for grand larceny in the

first degree and was sentenced to an indeterminate term of imprisonment with a

minimum of one year and a maximum of three years.6 BIA Decision at 1.

6(...continued)evidence. The State subsequently appealed. On or about March 18, 1997, the New York State AppellateDivision, First Department, reversed the trial judge’s vacatur, reinstated the verdict, and remitted thematter to the trial judge for sentencing. See People v. Ponnapula, 655 N.Y.S.2d 750, 760 (N.Y. App.Div. 1997). On July 8, 1997, Petitioner was sentenced in Supreme Court, New York County, to anindeterminate period of incarceration of one to three years. (Gov. Memo. in Opp. to Pet. at 4.) Thus,technically, Petitioner’s date of conviction is July 8, 1997; three months after the effective date ofIIRIRA.

According to the Third Circuit’s recent case, Perez v. Elwood, 294 F.3d 552 (3d Cir. 2002),the fact that Petitioner’s conviction date technically occurred after the effective date of IIRIRA shouldmake him ineligible for relief under former § 212(c). See id. at 561 (“Congress, by evincing clear intentto change retroactively the definition of ‘conviction’ in the INA, removed the possibility of § 212(c)relief for aliens who were convicted after the April 1, 1997 repeal of former INA § 212(c).”) However,in the instant case, Respondents and Petitioner have stipulated that Petitioner’s conviction date for thepurposes of these proceedings is December 20, 1994, the date of the guilty verdict. In his decisiondenying Petitioner relief, the Immigration Judge found that “on January 8th, 2001 the ImmigrationService and counsel for respondent stipulated to an amendment to the Notice to Appear . . . showing therespondent having been convicted December 20th, 1994.” In re Ponnapula, Oral Decision of theImmigration Judge, January 8, 2001, Hearing Transcript at 2. Moreover, the Board of ImmigrationAppeals found that “on December 20, 1994, the respondent was convicted” in New York State Court forgrand larceny. BIA Decision at 1. At no time in any of their briefs, nor at oral argument, didRespondents challenge Petitioner’s statements that his conviction occurred on December 20, 1994. Thus, the record before the court indicates that, for the purposes of the relevant immigrationproceedings, Petitioner’s conviction date is December 20, 1994. Consequently, while this courtrecognizes the binding effect of the Third Circuit’s opinion in Perez, it finds Perez to be inapplicableunder these circumstances.

7Petitioner’s hearing before the Immigration Judge occurred before the Supreme Court(continued...)

4

On October 4, 2000, the INS issued a Notice to Appear charging that

Petitioner was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an

alien who has been convicted of an aggravated felony as defined in 8 U.S.C.

§ 1101(a)(43); namely a theft offense for which the term of imprisonment was at

least one year. (Gov. Mem. in Opp. to Pet. at 4, Exhibit A at 24-26.) On January 8,

2001, an immigration judge ordered Petitioner removed from the United States and

denied his application for relief under former § 212(c) of the INA. The Immigration

Judge found that Petitioner was not within the purview of the holding in St. Cyr v.

INS, 229 F.3d 406 (2d. Cir. 2000), aff’d by 533 U.S. 289.7 BIA Decision at 1.

7(...continued)affirmed the Second Circuit’s decision.

5

Petitioner appealed the Immigration Judge’s finding to the Board of Immigration

Appeals (“BIA”). On May 22, 2001, the BIA dismissed the appeal and sustained the

order of removal, reasoning that St. Cyr applied only to those individuals who had

pleaded guilty, but not to individuals who had gone to trial. BIA Decision at 1-2.

On May 7, 2002, following two years of incarceration on the larceny

charge that underlies his current final order of removal, the New York State

Department of Correctional Services released Petitioner. (Petition at 2, ¶ 3.) Upon

his release, the INS immediately took Petitioner into custody and transferred him to

the Pike County Jail, in Pike County, Pennsylvania. (Id. at ¶ 4.) On May 8, 2002,

Petitioner filed the instant Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C.

§ 2241, in the United States District Court for the Southern District of New York.

The matter was subsequently transferred to the Eastern District of Pennsylvania and,

ultimately, to this court, where the petition was filed on July 16, 2002.

On July 29, 2002, the court ordered Respondents to show cause why the

Petition should not be granted. Respondents filed their response to the show cause

order on August 19, 2002. On September 13, 2002, Petitioner filed a reply to

Respondents show cause order. The court held oral argument on November 7, 2002.

The matter is now ripe for disposition.

B. Background of Former § 212(c)

Under the statutory regime in place prior to 1996, a lawful permanent

resident convicted of a deportable offense was statutorily eligible to seek

discretionary relief from deportation. See 8 U.S.C. § 1182(c) (1994). However, in

6

1996, Congress amended the INA through enactment of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1241 et

seq. (1006) and the Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 et seq. (1996). Pre-IIRIRA,

only those who had been convicted – either by plea or at trial – of a crime that fell

under the definition of an “aggravated felony,” see 8 U.S.C. § 1101(a)(43) (1994),

and who had served a prison term of at least five years were statutorily ineligible for

discretionary relief. See 8 U.S.C. § 1182(c) (1994). Even a defendant convicted of

an aggravated felony and sentenced to five or more years imprisonment might have

maintained eligibility for § 212(c) relief, provided that he had not served five years

of his sentence at the time of his removal hearing. See Matter of Ramirez-Somera,

20 I&N Dec. 564, 566 (BIA 1992) (finding an immigrant eligible for § 212(c) relief

despite having been sentenced to a fifteen year prison term because he had not yet

served five years of his sentence); see also United States v. Ben Zvi, 242 F.3d 89, 99

(2d Cir. 2001) (stating that the five year eligibility bar “turns not on the sentence

imposed but on the period of actual incarceration”); Greenidge v. INS, 204

F.Supp.2d 594, 600 (S.D.N.Y. 2001). Thus, the relief was available to a large

number of immigrant defendants, regardless of the sentence ultimately imposed.

The AEDPA and IIRIRA significantly limit the cases where

discretionary relief from removal can be sought. They preclude an alien, who has

been ordered removed from the United States because of a conviction that qualifies

as an aggravated felony, from applying for discretionary relief from removal. See

e.g., St. Cyr, 533 U.S. at 325 (stating that IIRIRA eliminated any possibility of

§ 212(c) relief).

8IIRIRA became effective on April 1, 1997.

9St. Cyr, also held that Congress had not repealed general habeas jurisdiction under 8 U.S.C.§ 2241 in cases such as this one. See 533 U.S. at 314.

10The Court in St. Cyr, stated that the Landgraf test has two parts. “The first step indetermining whether a statute has an impermissible retroactive effect is to ascertain whether Congresshas directed with the requisite clarity that the law be applied retroactively.” 533 U.S. at 516. Thesecond step requires an analysis of “whether depriving removable aliens of consideration for § 212(c)relief produces an impermissible retroactive effect.” Id. at 520.

(continued...)

7

Petitioner’s conviction for a fraud offense – which made him deportable

and ineligible under the AEDPA and IIRIRA to apply for discretionary relief –

occurred on December 20, 1994, approximately two and one half years before

Congress enacted these statutes. However, Petitioner’s removal proceedings were

commenced on October 4, 2000, almost three and one half years after the enactment

of the AEDPA and IIRIRA.8 Consequently, Petitioner argues that applying AEDPA

and IIRIRA to bar his eligibility to seek discretionary relief would have an

impermissible retroactive effect.

C. The Supreme Court’s Decision in St. Cyr

In St. Cyr, the Supreme Court held that discretionary relief under

former § 212(c) “remains available for aliens . . . whose convictions were obtained

through plea agreements and who, notwithstanding those convictions, would have

been eligible for § 212(c) relief at the time of their plea under the law then in

effect.”9 533 U.S. at 326. In reaching this conclusion, the Court analyzed whether

applying the repeal to petitioners, like St. Cyr, who pled guilty before the law’s

enactment, would have an impermissible retroactive effect. Id. at 315. The Court

applied its two-part retroactivity test set forth in Landgraf v. USI Film Products, 511

U.S. 244 (1994), and its progeny.10

10(...continued)

8

Applying the first step of the Landgraf test, the Court concluded that

Congress had not unambiguously decided the issue of § 304 of IIRIRA’s retroactive

application to pre-enactment convictions. Id. at 320. Because Congress did not

express an intent to apply the repeal retroactively, the Court turned to the second

step of the retroactivity analysis – whether the statute would have an impermissible

retroactive effect if it applied to immigrants who pled guilty prior to IIRIRA’s

enactment. The Court stated that its duty was to make a “commonsense, functional

judgment about whether the new provision attaches new legal consequences to

events completed before its enactment” guided by “familiar considerations of fair

notice, reasonable reliance, and settled expectations.” Id. at 321.

In making its judgment, the Court noted that “preserving the possibility

of [§ 212(c)] relief” is one of the main considerations for an immigrant in deciding

“whether to accept a plea offer or instead go to trial.” Id. at 323. The Court also

noted that immigrants are “acutely aware” of the immigration consequences of their

decisions. Id. at 322. Because applying § 304 of IIRIRA to petitioners, like St. Cyr,

who accepted a plea with knowledge that § 212(c) relief would be available, would

upset their settled expectations, the Court held that applying the repeal would be

impermissibly retroactive. Id. at 325.

In the instant case, given that the court is interpreting § 304 of IIRIRA,

it is bound by the Supreme Court’s finding in St. Cyr that Congress “did not

definitively decide the issue of [IIRIRA’s] retroactive application to pre-enactment

convictions” Id. at 320. Thus, the court is presented with the very narrow legal

9

question of whether it would be contrary to “familiar considerations of fair notice,

reasonable reliance, and settled expectations” to apply IIRIRA retroactively to

Petitioner. Martin v. Hadix, 527 U.S. 343, 358 (1999). In other words, does the fact

that Petitioner was convicted at trial, rather than by guilty plea, change the result

dictated by St. Cyr? Given the factual underpinnings of this case, the court

concludes that it does not.

II. Discussion

Petitioner argues that under the reasoning of the Supreme Court’s

decision in St. Cyr, he is eligible to seek relief from deportation under former

§ 212(c) of the INA, even though, unlike the petitioner in St. Cyr, he was convicted

after a trial, rather than by guilty plea. Petitioner also argues that his Equal

Protection rights under the Fifth Amendment to the United States Constitution were

violated when the Immigration Judge, and subsequently the BIA, denied him the

opportunity to seek relief under § 212(h) of the INA. Finally, Petitioner argues that

he should be granted an individualized bond hearing during the pendency of these

proceedings.

Respondents contend that the Supreme Court explicitly limited its

holding in St. Cyr to only those aliens who, in reliance on the availability of

§ 212(c) relief, pleaded guilty or nolo contendre to crimes that made them

deportable. (Gov. Memo. in Opp. to Pet. at 3.) As to Petitioner’s claim for relief

under § 212(h), Respondents argue that the BIA correctly found that § 212(h) relief

is not available to aliens, like Petitioner, who were previously admitted for lawful

permanent residence and who were subsequently convicted of an aggravated felony.

10

Furthermore, Respondents argue that denying Petitioner the right to seek relief

under § 212(h) does not violate his equal protection rights because aliens, like

Petitioner, who are lawful permanent residents are not similarly situated with non-

lawful permanent residents. Moreover, Congress had a rational basis for making its

distinctions. Finally, Respondents argue that Petitioner’s request for bail should be

denied because he has failed to exhaust his administrative remedies. (Id.)

For the reasons that follow, the court will grant in part, and deny in

part, the instant petition for Writ of Habeas Corpus. The court will grant the petition

only in so far as to remand the case to the Immigration Court and order that

Petitioner be given an opportunity to present a claim for relief under former §

212(c). The court will further order the Immigration and Naturalization Service to

conduct an individualized bond hearing to determine whether Petitioner is eligible to

be released on bond pending the outcome of his § 212(c) hearing. The court will

deny the petition in all other respects.

A. Petitioner’s § 212(c) Claim

St. Cyr established that Congress did not unmistakably indicate that it

intended – or even considered whether – to apply its repeal of § 212(c)

retroactively. 533 U.S. at 326. This decision is binding upon the court in the instant

matter. Because Congress has not spoken with the requisite clarity to apply IIRIRA

retroactively, the next step in the process is to determine whether application of the

statute “produces an impermissible retroactive effect.” Id. at 320. “If so, then in

keeping with our traditional presumption against retroactivity, [the court] presumes

that the statute does not apply to [the conduct at issue].” Martin, 527 U.S. at 352

(internal quotation marks omitted). The court finds the facts of the instant case

11

sufficiently analogous to St. Cyr. Elimination of any possibility of former § 212(c)

relief by IIRIRA has an obvious and severe retroactive effect on persons like

Petitioner who relied on settled expectations of the immigration laws in place at the

time he turned down a plea bargain and decided to go to trial.

As the Supreme Court indicated, immigrants are “acutely aware” of

immigration consequences when making critical decisions about their criminal case,

including whether to plead or go to trial. St. Cyr, 533 U.S. at 322. In the instant

case, Petitioner declined an offer, in his criminal case, to plead guilty to a

misdemeanor with a probationary sentence. (Pet. at 7, ¶ 19.) Had Petitioner

accepted this offer, there would have been no immigration consequences because the

conviction would not have constituted an “aggravated felony.” See 8 U.S.C. §

1101(a)(43) (defining the term “aggravated felony”). However, Petitioner turned

down the State’s offer and proceeded to trial where he was subsequently convicted.

A major factor in his decision not to accept the offer “was the lack of any

distinction” for the purposes of § 212(c) relief between a misdemeanor and felony

conviction. (Pet. at 7, ¶ 19.) Petitioner contends that had IIRIRA been in effect at

the time he choose to go to trial, rather than plea, “he would have pleaded guilty to

the misdemeanor and have avoided deportation.” (Id.) Moreover, Petitioner

contends that while criminal defendants who decide to fight a prosecution would

“likely not litigate any more vigorously if they knew convictions carried adverse

immigration consequences, defendants who turn down offers that carry no

immigration consequences do make reasoned decisions based on settled

expectations about the immigration laws.” (Pet. at 8, ¶ 21.)

12

Respondents argue that the Supreme Court “did not hold that

application of the repeal of § 212(c) would be impermissible with respect to all

criminal aliens; only those who pleaded guilty.” (Gov. Memo in Opp. to Pet. at 23.)

Furthermore, Respondents contend that because Petitioner “sought acquittal from

the outset, he cannot show, as required, that the availability of section 212(c) relief

affected his planning in any material way.” (Id. at 24) (citing St. Cyr, 533 U.S. at

325). Additionally, Respondents contend that because Petitioner “did not perform

any act or give up any right in reliance,” he does not meet the requirements set forth

in St Cyr. (Asst. U. S. Atty. Bloom at Oral Arg., Tr. at 7, lines 23-24.) These

requirements, according to Respondents, would include, not only a reliance on the

well settled expectations of immigration law, but also a quid pro quo relationship

between the alien and the Government. Respondents contend that the quid pro quo

requires aliens to actually give up some right in exchange for pleading guilty, thus

guaranteeing their deportability. (See id. at 8, lines 8-21.) In other words, by

pleading guilty to a removable offense – and thus giving up their right to go to trial

– aliens, like St. Cyr, guaranteed their removal from the United States in reliance on

the continued availability of § 212(c) relief. While the existence of a quid pro quo

likely played a role in the Supreme Court’s analysis, this court finds Respondents

reading of St. Cyr to be too narrow.

While the Supreme Court in St. Cyr noted that “plea agreements

involve a quid pro quo between the criminal defendant and the government,” these

statements came within the context of the Court’s discussion of the strong reliance

interests that were present in that case. See 533 U.S. at 321-322. Read in this

context, these statements do not create an additional requirement necessary to

13

establish a retroactive effect. Rather, they serve to highlight the “obvious and severe

retroactive” effect of applying IIRIRA to aliens like St. Cyr. Id. at 325. Thus, the

court finds that St. Cyr does not state that a quid pro quo or a waiver of

constitutional rights is required to establish an impermissible retroactive effect.

Rather, the determination whether a particular statute acts retroactively “should be

informed and guided by ‘familiar considerations of fair notice, reasonable reliance,

and settled expectations.’ ” Martin, 527 U.S. at 358 (quoting Landgraf, 511 U.S. at

270).

A defendant, who goes to trial believing that his opportunity to seek

§ 212(c) relief is secure, is as equally disrupted in his reasonable and settled

expectations as is a defendant who accepts a plea believing it to confer such a

benefit. Respondents point out that aliens like St. Cyr, who accept a plea, know

exactly what affect the plea will have on their immigration status – they will in

effect be “guaranteeing their deportability.” (Asst. U. S. Atty. Bloom’s St. at Oral

Arg., Tr. at 8, line 19.) Whereas, with aliens like Petitioner, who go to trial, there is

no guarantee of deportability, or guarantee of relief under § 212(c). In other words,

Respondents argue, since Petitioner could have faced a sentence longer than five

years upon his conviction at trial, his reliance on the availability of § 212(c) relief

was speculative at best. The court finds this argument unpersuasive.

First, Petitioner relied on his counsel’s advice that he would not be

given more than five years imprisonment if he were convicted at trial. (Eisemann

Decl. at 3, ¶ 4.) While it is true that such advice is not conclusive of the ultimate

sentence, it is reasonable for a criminal defendant to trust the advice of his counsel

in weighing the immigration consequences of his decision. Petitioner’s counsel

14

advised him that he would “in all likelihood, receive a sentence of only one to three

years’ imprisonment.” (Id.) The fact that this turned out to be true, buttresses the

court’s conclusion that it was reasonable for Petitioner to rely on his counsel’s

advice in making his immigration decisions.

Second, and more importantly, however, case law before IIRIRA held

that even an alien who received a sentence longer than five years might have

maintained eligibility for § 212(c) relief, provided that the alien had not served five

years of his sentence at the time of his removal hearing. See Matter of Ramirez-

Somera, 20 I. & N. Dec. 564, 566 (BIA 1992) (holding that an immigrant defendant

is eligible for § 212(c) relief despite having been sentenced to a fifteen year prison

term because he had not yet served five years of the sentence). Thus, the fact that

Petitioner could have received a sentence greater than five years upon his

conviction, would not have, pre-IIRIRA, automatically foreclosed his eligibility for

§ 212(c) relief.

Finally, the fact that an alien, like St. Cyr, by accepting a plea,

guaranteed his deportability is a factor to analyze in assessing his reliance on the

state of immigration law. It is not, however, the only factor in the analysis. Rather,

the relevant inquiry is whether Petitioner had settled expectations to which he

conformed his conduct. See St. Cyr, 533 U.S. at 321. Here, there can be no doubt

that Petitioner conformed his conduct to match his settled expectations of

immigration law. Petitioner was offered an opportunity to plead guilty to a

misdemeanor which would have had no immigration consequences, but turned down

the plea because “even if he were convicted of a felony after trial he would still be

11Moreover, Petitioner’s reliance on his eligibility for relief under § 212(c) was reasonable. To qualify for former § 212(c) relief, an immigrant had to show, inter alia, that he (1) was a lawfulpermanent resident of the United States; (2) had an unrelinquished domicile of seven consecutive years;and (3) had not committed an aggravated felony for which he had served a term of imprisonment of atleast five years. 8 U.S.C. § 1182(c) (1994); (see also Gov. Memo. in Opp. to Pet. at 16.) Petitionermeets all of these requirements. He is a lawful permanent resident. He has lived continuously in theUnited States for seven years. He was not sentenced to more than five years imprisonment and hadsupportive factors such as family ties and evidence of hardship to his family if deported. (EisemannDeclaration at 13, ¶ 27.)

15

eligible for hardship relief from deportation pursuant to § 212(c).” (Eisemann Decl.

at 3, ¶ 4.)

Respondents contend that Petitioner’s decision to go to trial was based

purely on criminal justice concerns – i.e., the weight of the evidence and/or his

belief in his own innocence – rather than the immigration consequences of his

decision. (See Asst. U. S. Atty. Bloom’s St. at Oral Arg., Tr. at 6, lines 12-14.) In

part, Petitioner agrees that his concerns were penalogical rather than solely

immigration. However, Petitioner argues that the reason why his concern was

focused on the criminal penalties is that there wasn’t a concern about the

immigration consequences. In other words, “he knew that he had the availability of

discretionary relief.” (Eisemann’s St. at Oral Arg., Tr. at 10, lines 20-23.) The court

agrees with Petitioner. Given Petitioner’s reliance on his counsel’s advice that he

would not receive a sentence greater than five years, he conformed his conduct – his

decision to go to trial, rather than plead guilty – to his settled expectation that

discretionary relief would be available in the event he were convicted.11

Furthermore, there is no basis in IIRIRA for limiting St. Cyr’s holding

to the facts of that case, thereby providing relief only to persons convicted by plea,

but not at trial. This is relevant because retroactivity analysis acts as a proxy for

congressional intent where Congress has not unambiguously declared its intent to

16

apply a statutory provision retroactively. See Landgraf, 511 U.S. at 272; see also

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 858 n.3 (1990) (Scalia,

J, concurring) (stating that “the application of the presumption [against statutory

retroactivity] . . . seeks to ascertain the probable legislative intent”). There is no

basis to conclude that Congress sought to distinguish between those immigrants who

were convicted because they pled guilty, or those convicted after trial.

In IIRIRA, Congress legislated with respect to convictions – not trials

or pleas. See, e.g., 8 U.S.C. § 1227(a)(2) (defining deportable offenses with

reference to convictions). While it is true that the Supreme Court, in St. Cyr, only

addressed those aliens who were convicted after guilty pleas, it did so not because

that group of aliens is the only group still eligible for discretionary relief. Rather,

that was the factual scenario presented to the Court in that case. Under

Respondents’ approach, a defendant who pleads guilty to a particular deportable

offense would have the right to seek § 212(c) relief; however, a defendant who, after

weighing the immigration consequences, opts to go to trial and is convicted of an

identical charge, would face mandatory deportation. It is inconceivable that

Congress intended such a result.

Again, there is nothing in IIRIRA that unmistakably indicates that

Congress wished to apply IIRIRA retroactively. In deciding not to accept the plea

bargain offered, but instead to go to trial, Petitioner conformed his conduct to the

settled expectation that § 212(c) relief would be available. Accordingly, the court

finds that foreclosing § 212(c) relief to Petitioner would have an impermissible

retroactive effect. Thus, § 212(c) relief remains available to Petitioner. The court

12Section 212(h) only waives a ground of inadmissibility, not a ground of deportability.However, both lawful permanent residents and non-lawful permanent residents who are already presentin the United States are able to apply for adjustment of status under 8 U.S.C. § 1255. Upon application,the “applicant is assimilated to the position of an alien outside the United States seeking entry as animmigrant.” Charles Gordon et al., Immigration Law and Procedure § 51.03[3] (rev. ed. 2001); see alsoIn re Mendez-Moralez, 21 I. & N. Dec. 296, 299 (BIA 1996); Matter of Alarcon, 20 I. & N. Dec. 557,562 (BIA 1992). If the application is granted – which requires, among other things, that the alien beadmissible to the United States for permanent residence – the adjustment of status effectively waives the

(continued...)

17

will grant his petition for writ of habeas corpus in so far as to remand the case to the

immigration court for a § 212(c) hearing.

B. § 212(h)

Deportable aliens who are married to United States citizens can seek

relief from deportation by applying to adjust their status to that of a permanent

resident based on marriage. 8 U.S.C. § 1255. Under § 1255, the Attorney General

may, in his discretion, adjust the status of an alien in removal proceedings to that of

an alien lawfully admitted for permanent residence if (1) the alien applies for

adjustment, (2) is immediately eligible to receive an immigrant visa at the time his

application is filed, (3) is admissible to the United States for permanent residence,

and (4) has an immigrant visa immediately available to him at the time the

application is filed. Id. at § 1255(a).

Petitioner’s spouse is a United States citizen. However, an alien is

inadmissible if he has been convicted of a crime of moral turpitude. See 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). Petitioner’s conviction for first degree grand larceny

constitutes a crime of moral turpitude. Thus, he cannot satisfy the second

requirement of 8 U.S.C. § 1255(a). To cure his inadmissibility, Petitioner applied

for a waiver of inadmissibility pursuant to § 212(h) of the INA. See 8 U.S.C. §

1182(h).12

12(...continued)ground of deportability. See Snajder v. INS, 29 F.3d 1203, 1207 (7th Cir. 1994); see also Tibke v INS,335 F.2d 42 (2d Cir. 1964).

138 U.S.C. § 1182(h) now states in relevant part:

No waiver shall be granted . . . in the case of an alien who has previously beenadmitted to the United States as an alien lawfully admitted for permanentresidence if either since the date of such admission the alien has been convicted ofan aggravated felony or the alien has not lawfully resided continuously in theUnited States for seven years immediately preceding the date of initiation ofproceedings to remove him from the United States.

18

Under § 1182(h), the Attorney General, in his discretion, may waive an

alien’s inadmissibility for a crime of moral turpitude if the alien is a spouse, parent,

or child of a United States citizen or permanent resident alien and can show that

denial of admission would cause extreme hardship to the citizen or permanent

resident. Id. at § 1182(h)(1)(B). Congress amended this waiver provision in 1996 to

prohibit eligibility if an alien previously has been admitted as a permanent resident

and then has either (a) been convicted of an aggravated felony, or (b) not resided in

the United States for seven continuous years.13 Id. at § 1182(h).

Petitioner argues that he is entitled to seek relief under § 1182(h)

because denying him eligibility under this section would violate the equal protection

component in the Fifth Amendment’s Due Process Clause. Specifically, Petitioner

argues that the statute makes an impermissible distinction because it treats lawful

permanent residents and non-lawful permanent residents differently without a

rational basis for its decision. Respondents argue that there is no equal protection

violation because lawful permanent residents and non-lawful permanent residents

are not similarly situated. See Jankowski-Burczyk v. INS, 291 F.3d 172, 176 (2d Cir.

19

2002) (holding that lawful permanent residents and non-lawful permanent residents

are not similarly situated).

While neither party mentioned so in their briefing or at oral argument,

the Third Circuit Court of Appeals has recently ruled on this issue. In De Leon-

Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002), the court applied a rational basis

test and held that “[b]ecause Congress conceivably had good reasons to create the §

1182(h) distinction, we hold that the distinction survives rational basis scrutiny.” Id.

at 640. In reaching this holding, the Third Circuit found at least two rationales for

the § 1182(h) distinction:

First, Congress could have concluded that [lawful permanentresidents] who commit crimes of moral turpitude, despite rightsand privileges based on their status that illegal aliens do not share,are uniquely poor candidates for waiver. Second, [lawfulpermanent residents] with employment and family ties to theUnited States, who are still willing to commit serious crimes, are ahigher risk for recidivism than [non-lawful permanent residents]who commit serious crimes but lack ties to the United States.

Id. (internal citations omitted).

In making this determination, the Third Circuit realized that such a

rationale may not appear to be overwhelmingly persuasive, but it is sufficient to

survive rationale basis review. The Third Circuit stated:

Although these two rationales do not command enthusiasm, theyform a plausible justification for the distinction made by Congress.

. . .

Our holding that the § 1182(h) distinction survives rational basisscrutiny should not be mistaken for an endorsement of the policy. We urge Congress to reconsider the ramifications of entirelyeliminating the Attorney General’s discretion in this area. Attimes, pathetic, heart-wrenching pain for families and burdensomeconsequences for employers and taxpayers accompany removalproceedings.

20

. . .

Although the Congress’s goal of expediting the removal ofcriminal aliens is understandable and even praiseworthy, denyingthe Attorney General of the United States the discretionary powerto adjust the status of a lawful permanent alien who has committeda crime of moral turpitude, regardless of the circumstances of thecrime and his familial conditions, can be harsh, self-defeating, andunwise.

Id.

This court shares the concerns of the Third Circuit. Making

classifications such as those made in § 1182(h) – while conceivably rational, and

thus constitutional – may have unintended consequences far greater than the benefits

they bestow. For example, Petitioner’s wife and children, who are United States

citizens, will now become a single parent family. Whether they can sustain

themselves or will become a burden on society is yet to be seen. Nonetheless, in

light of the Third Circuit’s holding in De Leon-Reynoso, the court finds that the

BIA’s decision finding Petitioner ineligible for relief under 8 U.S.C. § 1182(h) was

not a violation of the equal protection component of the Fifth Amendment’s Due

Process clause. Accordingly, the court will deny the petition for writ of habeas

corpus in so far as Petitioner requests relief related to 8 U.S.C. § 1182(h).

C. Petitioner’s Bond Request

In addition to requesting relief under 8 U.S.C. §§ 1182(c) and (h),

Petitioner requested the court to grant preliminary relief and order the INS to release

Petitioner on bond pending the disposition of the habeas petition on the merits. As

the court has reached the merits of the habeas petition, that request will be deemed

moot. Nonetheless, given that the court will grant Petitioner’s writ of habeas corpus

21

in so far as to remand the case to the Immigration Court for a § 212(c) hearing, it is

also appropriate for Petitioner to receive an individualized bond hearing.

Respondents do not dispute that it is appropriate for Petitioner to

receive a bond hearing at this juncture. At oral argument, Respondents’ attorney

stated that “if in fact the court does make a finding that [§ 212(c)] is impermissibly

retroactive . . . the court can vacate the final decision [of the BIA]. . . . At that point,

Petitioner, Mr. Ponnapula, would be eligible for bond.” (Asst. U. S. Atty. Bloom’s

St. at Oral Arg., Tr. at 42, lines 10-14.) Here, the court has made a finding that

§ 212(c), as applied to aliens like Petitioner, is impermissibly retroactive.

Consequently, the court will vacate that portion of the BIA’s opinion denying

Petitioner an opportunity to seek § 212(c) relief.

Three recent decisions, one from the United States Supreme Court and

two from the Third Circuit Court of Appeals, address the issue of whether a detained

alien is entitled to a bond hearing. In 1999, the Third Circuit dealt with an alien

who had received a final order of exclusion but was still in detention after four years

because his native country would not accept him. Chi Thon Ngo v. INS, 192 F.3d

390 (3d. Cir. 1999). Despite the fact that Ngo was an excludable alien rather than a

deportable alien, the Third Circuit counseled that “when detention is prolonged,

special care must be exercised so that confinement does not continue beyond the

time when the original justifications for custody are no longer tenable.” Id. at 398.

The Third Circuit held that “measures must be taken to assess the risk of flight and

danger to the community on a current basis” and that “grudging and perfunctory

review is not enough to satisfy the due process right to liberty, even for aliens.” Id.

148 U.S.C. § 1236(a)(b) states:

An alien ordered removed who is inadmissible under [8 U.S.C. § 1182],removable under section [8 U.S.C. § 1227(a)(1)(C), (a)(2), or (a)(4)] or who hasbeen determined by the Attorney General to be a risk to the community or unlikelyto comply with the order of removal, may be detained beyond the removal periodand, if released, shall be subject to the terms of supervision in paragraph (3).

158 U.S.C. § 1226(c) states in relevant part:

The Attorney General shall take into custody any alien who –

. . .

(continued...)

22

In 2001, the Supreme Court examined the constitutionality of indefinite

post-removal-order detention. Specifically, the case dealt with a former lawful

permanent resident alien who had received a final order of deportation but remained

in INS custody pursuant to 8 U.S.C. § 1231(a)(6)14 because the Government was

unable to effectuate the detainee’s removal to another country. Zadvydas v. Davis,

533 U.S. 678 (2001). In that case, the Court construed the statute to limit

post-removal-order detention to a period reasonably necessary to bring about the

alien’s removal, generally no more than six months. Id. at 701. Recognizing that

immigration detention implicates a fundamental liberty interest, the Court stated that

a “statute permitting indefinite detention of an alien would raise a serious

constitutional problem.” Id.

In Patel v. Zemski, 275 F.3d 299 (3d. Cir. 2001), the Third Circuit

interpreted the Supreme Court’s holding in Zadvydas and its holding in Ngo as

applying to the case of a lawful permanent resident who was being detained pending

a final order of removal. As a result of his conviction, the INS found Patel subject

to mandatory detention under 8 U.S.C. § 1226(c),15 thus precluding his right to

15(...continued)(B) is deportable by reason of having committed any offense covered insection [8 U.S.C. § 1227 (a)(2)(A)(ii), (A)(iii), (B), (C), or (D)

. . .

when the alien is released, without regard to whether the alien is releasedon parole, supervised release, or probation, and without regard to whetherthe alien may be arrested or imprisoned again for the same offense.

23

bond. Patel filed a writ of habeas corpus contesting his detention. He claimed that

his detention without any opportunity for individualized determination of his risk of

flight or danger to the community violated both his substantive and procedural due

process rights to be free from restraint of liberty. Examining Patel’s detention in

light of the Supreme Court’s recent decision in Zadvydas, the Third Circuit held

that:

Mandatory detention of aliens after they have been found subjectto removal but who have not yet been ordered removed becausethey are pursuing their administrative remedies violates their dueprocess rights unless they have been afforded the opportunity foran individualized hearing at which they can show that they do notpose a flight risk or danger to the community.

Patel, 275 F.3d at 314.

Because the court will grant Petitioner’s habeas petition as to his

§ 212(c) claim, Petitioner will no longer be subject to a final order of removal.

While he will still be removable, he will fall into the class of persons, like Patel,

who have not yet been ordered removed because they are seeking administrative

remedies, i.e., a discretionary waiver of removal under former § 212(c) of the INA.

Consequently, to deny petitioner an individualized hearing would be to deny him

due process. Accordingly, the court will order the Immigration and Naturalization

24

Service to conduct an individualized bond hearing to determine whether Petitioner

poses a flight risk or a danger to the community.

IV. Conclusion

Because Petitioner conformed his conduct – his decision to go to trial,

rather than plead guilty – to his settled expectation that discretionary relief would be

available in the event he were convicted, applying IIRIRA to bar his eligibility for

discretionary relief would have an impermissible retroactive effect. Accordingly,

the court will grant Petitioner’s habeas petition in so far as to remand the case back

to the Immigration Court for the purposes of allowing petitioner to apply for

discretionary relief under former § 212(c). The court will deny Petitioner’s habeas

petition in all other respects, and will deny, as moot, his request for bond pending

the outcome of these proceedings.

Nonetheless, in light of the due process implications of denying

Petitioner an individualized bond hearing absent a final order of removal, the court

will order the Immigration and Naturalization Service to conduct an individualized

bond hearing to assess Petitioner’s eligibility for bond during the pendency of his

former § 212(c) proceedings. An appropriate order will issue.

SYLVIA H. RAMBO

United States District Judge

Dated: December , 2002.

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MURALI KRISHNA :PONNAPULA : CIVIL NO.1:CV-02-1214

:Petitioner :

:v. :

:JOHN ASHCROFT, et al., :

:Respondents :

ORDER

In accordance with the accompanying memorandum of law IT IS

HEREBY ORDERED THAT the Petition for Writ of Habeas Corpus is

GRANTED IN PART and DENIED IN PART as follows:

(1) The petition is GRANTED in so far as the Board of Immigration

Appeals denial of petitioner’s eligibility to seek discretionary relief pursuant to 8

U.S.C. § 1182(c), denied Petitioner Due Process under the Fifth Amendment to the

United States Constitution. Therefore, that portion of the BIA’s decision is invalid.

Accordingly, the Immigration and Naturalization Service shall bring Petitioner

before the Immigration Court to allow it to conduct a hearing regarding Petitioner’s

eligibility to receive discretionary relief under 8 U.S.C. § 1182(c) (1994).

Moreover, because that there is no longer a final order of removal in this

matter, the Immigration and Naturalization Service shall conduct an individualized

bond hearing to determine whether Petitioner is entitled to bond during the

pendency of his application for discretionary relief under 8 U.S.C. § 1182(c) (1994).

(2) The petition is DENIED in all other respects. Furthermore,

Petitioner’s request for bond during the pendency of his habeas corpus proceedings

is DEEMED MOOT.

(3) The clerk of court shall close the file.

SYLVIA H. RAMBO

United States District Judge

Dated: December , 2002.